Regulatory Developments

Pruitt’s Sue-and-Settle Directive … Where Is It?

Interest is growing in a “directive” EPA Administrator Scott Pruitt may have issued regarding a new Agency position to the so-called sue-and-settle approach to federal environmental rulemaking. In sue and settle, which gained notoriety with the Obama EPA, the Agency responds to a lawsuit demanding new environmental protections by entering into a consent decree in which it avoid litigation and commits to writing a proposal and final rule that satisfies the plaintiffs rather than defend itself in court.

Sue-and-Settle “Days Are Over”

Pruitt has made his disdain for sue-and-settle well known. In a March 29, 2017, interview, Pruitt stated: “One of the things we’ve done internally is send a memo out to our regions and also to headquarters to say that the days of sue and settle, the days of consent decrees governing this agency where the EPA gets sued by an NGO [nongovernmental organization], a third party, and that third party sets the agenda, sets the timelines on how we do rulemaking, and bypassing rulemaking entirely have ended. And we’ve sent that out across the agency.”

Also, according to news reports, in a May 24, 2017, speech, Pruitt repeated that the Agency would depart from the sue-and-settle approach and that he has issued a directive stating the days of rulemaking by consent order are over.

Stakeholders and Public Excluded

In response to the news reports, in a June 29, 2017, letter, Republican chairs of the House Committee on Energy and Commerce and the Committee on the Judiciary wrote to Pruitt and Attorney General Jeff Sessions that sue and settle “too often circumvents legitimate oversight by Congress and the Office of Management and Budget’s Office of Information and Regulatory Affairs. It also frequently prevents affected stakeholders and the public from participating as fully in the rulemaking process as otherwise would be possible.”

The chairs further stated that they appreciated the change in policy and urged the EPA and the Department of Justice (DOJ) to develop conforming guidance as soon as possible. The letter also requested that EPA and DOJ staff brief committee staff on the scope of the directive.

A Directive without Documentation?

Several days later, the Center for Biological Diversity announced that it filed a Freedom of Information Act (FOIA) request with the EPA to learn about the directive. In response to the FOIA request, the EPA informed the Center that it had no records relating to sue-and-settle agreements. According to the Center, the EPA told one news organization that Pruitt’s directive was “oral” and not in written form.

“How can the head of an agency send out a directive without any documentation?” said Brett Hartl, government affairs director at the Center. “Scott Pruitt is turning the EPA into one of the least transparent agencies in the federal government. He may think that he can do all of the EPA’s business in the shadows while cozying up to industry, but he’s dead wrong. It’s illegal, and the American people won’t stand for it.”

Connect with Us

Free Resources

Check out the results of BLR’s OSHA Recordkeeping Standard and Electronic Submission Survey sponsored by Sphera. The survey sheds light on how companies are faring in response to OSHA’s upcoming 1904 recordkeeping rule updates and what solutions are expected to help them with electronic submission. Highlighted findings from the poll of over 400 survey participants include […]

Check out our recent survey and its accompanying report, both sponsored by eCompliance®, to get insight into how safety professionals and their companies are encouraging employees to actively participate in safety initiatives. The study illustrates the diverse opinions within the safety field regarding such issues as implementing behavior-based vs. participation-based programs, measuring safety participation, and […]

The Supply Chain and Sustainability Survey sponsored by Avetta® was launched in mid-April 2017 and surveyed 379 environmental, health, and safety (EHS) professionals. Respondents shared their insights into how their companies are managing the safety risks that naturally occur in supply chains. Download the report today and see what our respondents had to say!

This survey and its companion report, sponsored by the American Heart Association, sought to understand how organizations are approaching First Aid, cardiopulmonary resuscitation (CPR), and automated external defibrillator (AED) training. We found out: The Importance of First Aid/CPR/AED training within companies The top reason for offering First Aid/CPR/AED training How employee’s reacted to this training […]

OSHA Challenge

On Monday, August 21, 2017, all of North America will be treated to an eclipse of the sun. The National Aeronautics and Space Administration (NASA) projects that the longest duration of the total eclipse of the sun will be near:

Safety Solutions Showcase

Safety Decisions Magazine

A quarterly magazine offering a fresh look at the strategic issues that challenge safety executives in today’s ever-changing business arena. Read the latest edition today.

Safety Training

Compliance will only take you so far with injury prevention. To achieve world-class safety performance on and off-the-job you must address the human factors that are involved in the majority of incidents and injuries. Learn how SafeStart fits within your existing safety system to reduce injuries 24/7